Tag: West Virginia

I mentioned that West Virginia is unique among all states in that the judiciary’s budget request to the legislature cannot be reduced. The West Virginia House and Senate, after disagreeing on specific language, have now sent to voters a plan to put the legislature in charge of the judiciary’s budget (news here and here)

The current constitutional language provides

The Legislature shall not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

The Legislature shallmay not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein: Provided, That no item relating to the judiciary shall be decreased,Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state

In the end, however, the version approved provides percentages beyond which the legislature may not cut. Gone is anything about protecting the budget from legislative actions based on “a particular ruling, order, or decision of a court of this state.”

That the Legislature shallmay not decrease the total general revenue appropriations to the judiciary in the budget bill to an amount that is less than 85 percent of the amount of the total general revenue appropriations to the judiciary in the most recently enacted budget without a separate vote of the Legislature approved by a two-thirds vote of the members elected to each house, determined by yeas and nays and entered on the journals.

I mentioned that West Virginia is unique among all states in that the judiciary’s budget request to the legislature cannot be reduced. The West Virginia House and Senate appear to be disagreeing over how to re-assert legislative power in this area while ensuring courts aren’t punished financially for their decisions.

The current constitutional language provides

The Legislature shall not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

SJR 3 as introduced would have reasserted legislative control, striking the “That no item relating to the judiciary shall be decreased” language.

The West Virginia Senate approved two big changes to the state’s judiciary yesterday

Judicial Budget Oversight Amendment

SJR 3 as approved addresses funding for the state’s judiciary. Currently the West Virginia judiciary is unique among all states in that it’s budget request must be approved by the legislature without a decrease

The Legislature shall may not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein. Provided, That no item relating to the judiciary shall be decreased

SJR 3 as introduced would have reasserted legislative control, striking the “That no item relating to the judiciary shall be decreased” language.

Provided, That the Legislature may not make any law that conditions the increase or decrease of an item relating to the judiciary upon a particular ruling, order, or decision of a court of this state

The Senate Finance language was approved by the full Senate. If approved by the House it would still have be approved by voters.

Intermediate Appellate Court (at least for the next 10 years)

SB 341 as amended and approved by the full Senate yesterday is the latest in a 20 year effort to get an intermediate appellate court in the state.

SB 341 would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges. The court would automatically sunset in July 2029.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.

The governor would then appoint a person subject to Senate confirmation.

Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

Included is a provision that civil appeals would lie either to the Intermediate Court of Appeals or Supreme Court of Appeals and that in civil cases “shall be afforded a full and meaningful review, and an opportunity to be heard, by the West Virginia Supreme Court of Appeals or the Intermediate Court of Appeals, and a written decision on the merits shall be issued, as a matter of right.”

SB 341 as amended and approved by the Senate Judiciary Committee last week would create a court with two geographic districts (Northern and Southern) each with its own panel made up of 3 judges. Judges would not be “borrowed” from other courts; prior proposals would have created 3 judge panels made of 1 Supreme Court justice sitting with 3 Circuit Court judges.

Interestingly, the judges of the new court would NOT be subject to any sort of election. Instead there would be a 3-step process.

The state’s existing Judicial Vacancy Advisory Commission, currently used to fill interim vacancies, would submit names to the governor for each vacancy.

The governor would then appoint a person subject to Senate confirmation.

Once appointed, the judge serves for 10 years and may be reappointed. (Some of the first set of judges would serve 6-year or 8-year terms in order to create a staggered term system).

The bill as introduced, and its House counterpart (HB 2879), was unclear about the power of the governor to furlough judicial employees. (“The furlough must be inclusive of all employees within a designated department, agency, division, office, or program, regardless of the source of funds, place of work, or classification.”)

Under the bill as committee amended and approved by the Senate, the process for judicial furloughs would be out of the governor’s control. Specifically:

The governor is expressly prohibited from ordering a furlough of constitutional officers, employees of constitutional officers, or members or employees of the judicial branch.

When the Governor declares a fiscal emergency pursuant to SB 446, the Supreme Court of Appeals shall have authority to furlough employees and personnel of the judiciary under the Supreme Court of Appeals, including employees and personnel of the circuit courts, family courts and magistrate courts.

Furloughs shall not be employed so as to completely close a court or court office.

Nothing in the section of SB 446 discussing furloughs of judicial branch employees “shall be construed as granting authority for the furlough of elected judicial officers, nor shall it be construed as restricting or otherwise limiting the plenary authority of the Supreme Court of Appeals or the lower courts.”

SB 446 as amended was approved by the Senate 23-11 and is now on its way to the House.

A West Virginia Circuit judge-elect who was suspended from office for knowingly publishing false statements against his opponent in the 2016 election is now facing an impeachment effort in the state’s legislature.

During the 2016 election cycle for West Virginia’s 28th Circuit Court Steven Callaghan sent a mailer to voters showing the incumbent judge parting with then-President Barack Obama. No such party took place but Callaghan won the election by a mere 220 votes. A complaint was lodged with the state’s judicial disciplinary commission and during those proceedings and to this date Callaghan never took office (thus “Judge-Elect”).

I mentioned earlier this session the Florida House bill that would require that state’s supreme court provide a “detailed explanation” to the governor and legislature for cases that take longer than 180 days. Now at least 10 members of the West Virginia House want similar reports for that state’s general jurisdiction Circuit Courts.

Under HB 2685 as filed every circuit clerk would be required to produce a report at least quarterly to the Supreme Court of Appeals, Governor, and Legislature “listing all pending cases which have exceeded the time standards for trial courts as established by rules of the West Virginia Supreme Court of Appeals.” It is likely this is a reference to Trial Court Rule 16. Moreover, the reports would be available to the public on request.